Published on:

By

As we’ve previously written, the FCC adopted an Audible Crawl Rule in April 2013 requiring TV stations, by today, May 26, 2015, to present aurally on a secondary audio program stream (“SAP”) any non-newscast emergency information that a station presents visually. On March 27, 2015, the National Association of Broadcasters (“NAB”) filed a petition urging the FCC to grant a six-month extension of this deadline. The NAB also requested that the FCC (i) waive the requirement that visual but non-textual emergency information be included in the audible crawl, and (ii) reconsider the utility of including school closing information in its list of emergency information to be included in the SAP. Today, the FCC released a Memorandum Opinion and Order announcing that it will grant each of the NAB’s three waiver requests, extending the general compliance deadline by six months to November 30, 2015.

As adopted, the rule would have required all emergency information presented visually to be fully conveyed verbally on the SAP twice, including weather maps and school closings. Unfortunately, certain inherently graphical information, such as a Doppler Radar map, does not contain text files that can simply be converted to speech—making compliance not only difficult, but arguably impossible (e.g., imagine describing a Doppler Radar map twice in the time it is onscreen.). The NAB also contended that the aural presentation of lengthy school closure lists “serves no real utility, [and] may in fact impede timely provision of emergency information to vision impaired viewers” that could obtain school closure information through more efficient means. The 50 State Broadcasters Associations and the Society of Broadcast Engineers were among commenters that filed in support of the waiver requests.

Balancing the challenges of implementation against the concerns stated in comments submitted by the American Council of the Blind and the American Foundation for the Blind, the FCC announced that it will waive the requirement to aurally describe visual but non-textual emergency information, but limit the waiver to 18 months. Broadcasters now have until November 2016 before the FCC will require them to “aurally describe the critical details regarding the emergency and how to respond to the emergency . . . including the critical details conveyed solely by a map or other graphic display.”

Lastly, as the NAB requested (and all commenters supported), the FCC will waive the requirement that school closing announcements and bus schedule changes be included in the audible crawl SAP pending FCC reconsideration of that issue as part of its Second Further Notice of Proposed Rulemaking (adopted May 21, 2015, but not yet released by the FCC).

As the compliance deadline was set to kick in today, many broadcasters were likely contemplating which was the better of two bad options—ceasing to visually provide any emergency information, or risking an enforcement action for failing to convert onscreen text (or graphics) into speech. Fortunately, today’s waiver grant avoids the need for broadcasters to make that Hobson’s choice, so better late than never!

Published on:

By

At its Open Meeting scheduled for next Thursday, May 21, 2015, the FCC will consider extending emergency information accessibility rules to “second screen” devices such as computers, tablets, and smartphones.  The contemplated Second Report and Order and Second Further Notice of Proposed Rulemaking would expand the class of entities subject to the FCC’s accessibility rules (adopted in April 2013) to include multi-channel video programming distributors (“MVPDs”) providing linear video programming on second screen devices.  Such a change could have far-reaching implications for both MVPDs and device manufacturers.

By way of background, the FCC released a Report and Order (“Order”) and Further Notice of Proposed Rulemaking (“FNPRM”) on April 9, 2013, adopting some, and proposing other, emergency information and video description rules to implement Sections 202 and 203 of the Twenty-First Century Communications and Video Accessibility Act of 2010.  Among other requirements, the Order adopted new rules mandating that video programming distributors (“VPDs”) present aurally on a secondary audio stream (“SAS”) any non-newscast emergency information that it presents visually.  The emergency information provided on the SAS must be read at least twice in full and preceded by an aural tone to alert blind and visually impaired audience members that emergency information is available and to differentiate audio accompanying the underlying programming from emergency information audio.

In the FNPRM, the Commission sought comment on whether an MVPD that permits its subscribers to access linear video programming via second screen devices qualifies as a VPD that is providing “video programming”, as defined in Sections 79.1(a)(1) and (2) of the FCC’s Rules, and is therefore covered by the emergency information requirements adopted in the Order.  Issues left open in the FNPRM that the FCC will likely have to address in drafting the Second Report and Order include:

  • Who bears the burden of making emergency information available on these devices: the MVPD, the device manufacturer, or both?
  • Should the rules apply regardless of where the subscriber is located when accessing the programming (i.e., inside or outside the home)?
  • Does it matter whether the emergency content is being delivered over the MVPD’s IP network or over the Internet?

Although the FCC’s announcement in the tentative agenda for the meeting mentions only proposed rules related to accessibility of emergency alerts, the FNPRM also opened the door to extending video description rules to second screen devices.  Notably, the FCC has remarked that, “as a technical matter, once the [SAS] is received by a device, that stream can be made available regardless of whether it is used for emergency information or video description.”  Next week, we’ll hopefully learn how far the FCC intends to go on both of these requirements.

Published on:

By and

April 2015

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Scuttles New York Pirate Radio Operator and Proposes $20,000 Fine
  • Failure to Properly Identify Children’s Programming Results in $3,000 Fine
  • Telecommunications Carrier Consents to Pay $16 Million To Resolve 911 Outage Investigation

Fire in the Hole: FCC Proposes $20,000 Fine Against Pirate Radio Operator

This month, the FCC proposed a fine of $20,000 against an individual in Queens, NY for operating a pirate FM radio station. Section 301 of the Communications Act prohibits the unlicensed use or operation of any apparatus for the transmission of communications or signals by radio. Pirate radio operations can interfere with and pose illegal competitive harm to licensed broadcasters, and impede the FCC’s ability to manage radio spectrum.

The FCC sent several warning shots across the bow of the operator, noting that pirate radio broadcasts are illegal. None, however, deterred the individual from continuing to operate his unlicensed station. On May 29, 2014, agents from the Enforcement Bureau’s New York Office responded to complaints of unauthorized operations and traced the source of radio transmissions to an apartment building in Queens. The agents spoke with the landlord, who identified the man that set the equipment up in the building’s basement. According to FCC records, no authorization had been issued to the man, or anyone else, to operate an FM broadcast station at or near the building. After the man admitted that he owned and installed the equipment, the agents issued a Notice of Unlicensed Operation and verbally warned him to cease operations or face significant fines. The man did not respond to the notice.

Not long after, on January 13, 2015, New York agents responded to additional complaints of unlicensed operations on the same frequency and traced the source of the transmissions to another multi-family dwelling in Queens. The agents heard the station playing advertisements and identifying itself with the same name the man had used during his previous unlicensed operations. Again, the agents issued a Notice of Unlicensed Operation and ordered the man to cease operations, and again he did not respond.

The FCC therefore concluded it had sufficient evidence that the man willfully and repeatedly violated Section 301 of the Communications Act, and that his unauthorized operation of a pirate FM station warranted a significant fine. The FCC’s Rules establish a base fine of $10,000 for unlicensed operation of a radio station, but because the man had ignored multiple warnings, the FCC doubled the base amount, resulting in a proposed fine of $20,000.

FCC Rejects Licensee’s Improper “E/I” Waiver Request and Issues $3,000 Fine

A California TV licensee received a $3,000 fine this month for failing to properly identify children’s programming with an “E/I” symbol on the screen. The Children’s Television Act (“CTA”) requires TV licensees to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671 of the FCC’s Rules requires licensees to satisfy certain criteria to demonstrate compliance with the CTA; for example, broadcasters are required to provide specific information to the public about the children’s programming they air, such as displaying the “E/I” symbol to identify Core Programing. Continue reading →

Published on:

By

The FCC’s Media Bureau issued a Public Notice today announcing that it would immediately suspend the September 1, 2015 digital transition date for LPTV and TV translator stations. The FCC’s Second Report and Order had established the September 1 deadline for LPTV, TV translator, and Class A TV stations to terminate analog operations and transition to digital. However, in its Third Notice of Proposed Rulemaking, the FCC recognized that the upcoming spectrum auction and repacking process would likely displace a substantial number of LPTV and TV translator stations, and that 795 LPTV and 779 TV translator stations had not yet completed their digital conversion. Seeking to avoid requiring those stations to incur the costs of the digital transition prior to completion of the auction and repacking, the FCC proposed suspending the transition deadline. In today’s Public Notice, the FCC concluded that suspending the digital transition deadline would be appropriate to permit analog LPTV and TV translators to postpone construction of digital facilities that could be impacted by the spectrum auction and repacking.

The FCC’s decision, however, does not affect Class A TV stations, which are still required to complete the digital transition by the September 1 deadline. Class A stations that do not complete construction of their digital facilities by 11:59 pm, local time, on September 1, 2015 will be required to go dark until they complete construction of their digital facilities.

Additionally, although Class A stations are not required to cease analog transmissions until September 1, their digital facilities must be licensed or have an application for a license on file by May 29, 2015 for those digital facilities to be fully protected by the FCC in the repacking process. Any Class A station that fails to meet the May 29 Pre-Auction Licensing Deadline will be afforded protection based solely on the coverage area and population served by its analog facilities, as set forth in the Incentive Auction Report and Order.

The FCC has not announced when the new transition date will be, other than to say the deadline will come after final action in its LPTV DTV proceeding. According to the Third NPRM, the FCC is weighing the benefit of waiting until the close of the auction to establish a new deadline—which would allow the FCC to take into account the overall impact of the repacking process—against announcing a deadline sooner than the end of the auction, which could provide more certainty to LPTV and translator stations about when the digital transition will end and expedite the completion of that transition.

Published on:

By and

March 2015

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Deceptive Practices Yield Multi-Million Dollar Fines for Telephone Interexchange Carriers
  • LPFM Ads Cost $16,000
  • Multiple TV Station Licensees Face $6,000 Fines for Failing to File Children’s TV Programming Reports

Interexchange Carriers’ “Slamming” and “Cramming” Violations Yield Over $16 Million in Fines

Earlier this month, the FCC imposed a $7.62 million fine against one interexchange carrier and proposed a $9 million fine against another for changing the carriers of consumers without their authorization, commonly known as “slamming,” and placing unauthorized charges for service on consumers’ telephone bills, a practice known as “cramming.” Both companies also fabricated audio recordings and submitted the recordings to the FCC, consumers, and state regulatory officials as “proof” that consumers had authorized the companies to switch their long distance carrier and charge them for service when in fact the consumers had never spoken to the companies or agreed to the service.

Section 258 of the Communications Act and Section 64.1120 of the FCC’s Rules make it unlawful for any telecommunications service carrier to submit or execute a change in a subscriber’s selection of telephone exchange service or telecommunications service provider except with prior authorization from the consumer and in accordance with the FCC’s verification procedures. Additionally, Section 201(b) of the Communications Act requires that “all charges, practices, classifications, and regulations for and in connection with [interstate or foreign] communications service [by wire or radio], shall be just and reasonable.” The FCC has found that any assessment of unauthorized charges on a telephone bill for a telecommunications service is an “unjust and unreasonable” practice under Section 201(b), regardless of whether the “crammed” charge is placed on consumers’ local telephone bills by a third party or by the customer’s carrier.

Further, the submission of false and misleading evidence to the FCC violates Section 1.17 of the FCC’s Rules, which states that no person shall “provide material factual information that is incorrect or omit material information . . . without a reasonable basis for believing that any such material factual statement is correct and not misleading.” The FCC has also held that a company’s fabrication of audio recordings associated with its “customers” to make it appear as if the consumers had authorized the company to be their preferred carrier, and thus charge it for service, is a deceptive and fraudulent practice that violates Section 201(b)’s “just and reasonable” mandate.

In the cases at issue, the companies failed to obtain authorization from consumers to switch their carriers and subsequently placed unauthorized charges on consumers’ bills. The FCC found that instead of obtaining the appropriate authorization or even attempting to follow the required verification procedures, the companies created false audio recordings to mislead consumers and regulatory officials into believing that they had received the appropriate authorizations. One consumer who called to investigate suspect charges on her bill was told that her husband authorized them–but her husband had been dead for seven years. Another person was told that her father–who lives on another continent–requested the change in service provider. Other consumers’ “verifications” were given in Spanish even though they did not speak Spanish on the phone and therefore would not have completed any such verification in Spanish. With respect to one of the companies, the FCC remarked that “there was no evidence in the record to show that [the company] had completed a single authentic verification recording for any of the complainants.”

The FCC’s forfeiture guidelines permit the FCC to impose a base fine of $40,000 for “slamming” violations and FCC case law has established a base fine of $40,000 for “cramming” violations as well. Finding that each unlawful request to change service providers and each unauthorized charge constituted a separate and distinct violation, the FCC calculated a base fine of $3.24 million for one company and $4 million for the other. Taking into account the repeated and egregious nature of the violations, the FCC found that significant upward adjustments were warranted–resulting in a $7.62 million fine for the first company and a proposed $9 million fine for the second.

Investigation Into Commercials Aired on LPFM Station Ends With $16,000 Civil Penalty

Late last month, the FCC entered into a consent decree with the licensee of a West Virginia low power FM radio station to terminate an investigation into whether the licensee violated the FCC’s underwriting laws by broadcasting announcements promoting the products, services, or businesses of its financial contributors.

LPFM stations, as noncommercial broadcasters, are allowed to broadcast announcements that identify and thank their sponsors, but Section 399b(b)(2) of the Communications Act and Sections 73.801 and 73.503(d) of the FCC’s Rules prohibit such stations from broadcasting advertisements. The FCC has explained that the rules are intended to protect the public’s use and enjoyment of commercial-free broadcasts in spectrum that is reserved for noncommercial broadcasters that benefit from reduced regulatory fees.

The FCC had received multiple complaints alleging that from August 2010 to October 2010, the licensee’s station broadcast advertisements in violation of the FCC’s noncommercial underwriting rules. Accordingly, the FCC sent a letter of inquiry to the licensee. In its response, the licensee admitted that the broadcasts violated the FCC’s underwriting rules. The licensee subsequently agreed to pay a civil penalty of $16,000, an amount the FCC indicated reflected the licensee’s successful showing of financial hardship. In addition, the licensee agreed to implement a three-year compliance plan, including annual reporting requirements, to ensure no future violations of the FCC’s underwriting rules by the station will occur.

Failure to “Think of the Children” Leads to $6,000 Fines

Three TV licensees are facing $6,000 fines for failing to timely file with the FCC their Form 398 Children’s Television Programming Reports. Section 73.3526 of the FCC’s Rules requires each commercial broadcast licensee to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e)(11)(iii) requires a commercial licensee to prepare and place in its public inspection file a Children’s Television Programming Report on FCC Form 398 for each calendar quarter. The report sets forth the efforts the station made during that quarter and has planned for the next quarter to serve the educational and informational needs of children. Licensees are required to file the reports with the FCC and place them in their public files by the tenth day of the month following the quarter, and to publicize the existence and location of those reports.

This month, the FCC took enforcement action against two TV licensees in California and one TV licensee in Ohio for Form 398 filing violations. The first California licensee failed to timely file its reports for two quarters, the second California licensee failed to file its reports for five quarters, and the Ohio licensee failed to file its reports for eight quarters. Each licensee also failed to report these violations in its license renewal application, as required under Section 73.3514(a) of the Rules. Additionally, the Ohio licensee failed to timely file its license renewal application (in violation of Section 73.3539(a) of the Rules), engaged in unauthorized operation of its station after its authorization expired (in violation of Section 301 of the Communications Act), and failed to timely file its biennial ownership reports (in violation of Section 73.3615(a) of the Rules).

Despite the variation in the scope of the violations, each licensee now faces an identical $6,000 fine. The FCC originally contemplated a $16,000 fine against the Ohio licensee, as its guidelines specify a base forfeiture of $10,000 for unauthorized operation alone. However, after assessing the licensee’s gross revenue over the past three years, the FCC determined that a reduction of $10,000 was appropriate, resulting in the third $6,000 fine.

A PDF version of this article can be found at FCC Enforcement Monitor.

Published on:

By

As Pillsbury’s 2015 Broadcasters’ Calendar indicates, new rules relating to closed captioning go into effect on March 16, 2015. The FCC adopted these rules in its February 24, 2014 Closed Captioning Quality Order . They generally concern a station’s “quality control” over its program captioning.

As a quick refresher, the Order adopted closed caption quality standards and technical compliance rules to ensure video programming is fully accessible to individuals who are deaf or hard of hearing. In April 2014, the FCC announced a series of effective dates for the requirements in the Order, and in December 2014, it extended a January 15, 2015 deadline for compliance with certain rules to March 16, 2015. The requirements that will go into effect on March 16, 2015 include:
Continue reading →

Published on:

By and

February 2015

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Issues $3.36 Million Fine to Company and Its CEO for Selling Toll Free Numbers
  • Antenna Fencing and Public Inspection File Violations Result in $17,000 Fine
  • FCC Reiterates That “Willful Violation” Does Not Require “Intent to Violate the Law”

Hold the Phone: FCC Finds Company and CEO Jointly and Severally Liable for Brokering Toll Free Numbers

The FCC handed down a $3,360,000 fine to a custom connectivity solutions company (the “Company”) and its CEO for violations of the FCC’s rules regarding toll free number administration. Section 251(e)(1) of the Communications Act mandates that telephone numbers, including toll free numbers, be made “available on an equitable basis.” As a general rule, toll free numbers, including “vanity” numbers (e.g., 1-800-BUY-THIS), cannot be transferred, and must be returned to the numbering pool so that they can be made available to others interested in applying for them when the current holder no longer needs them. Section 52.107 of the FCC’s Rules specifically prohibits brokering, which is “the selling of a toll free number by a private entity for a fee.”

In 2007, the Enforcement Bureau issued a citation to the Company and CEO for warehousing, hoarding, and brokering toll free numbers. The Bureau warned that if the Company or CEO subsequently violated the Act or Rules in any manner described in the 2007 citation, the FCC would impose monetary forfeitures. A few years later, the Bureau received a complaint alleging that in June and July of 2011, the Company and CEO brokered 15 toll free numbers to a pharmaceutical company for fees ranging from $10,000 to $17,000 per number. In 2013, the FCC found the Company and CEO jointly and severally liable for those violations and issued a $240,000 fine.

Despite the 2007 citation and 2013 fine, the Bureau found evidence that the CEO continued to broker toll free numbers. In early 2013, the Bureau received tips that the CEO sold several toll free numbers to a law firm for substantial fees. An investigation revealed that the CEO, who was the law firm’s main point of contact with the Company, had sold 32 toll free numbers to the firm for fees ranging from $375 to $10,000 per number. On other occasions, the CEO solicited the firm to buy 178 toll free numbers for fees ranging from $575 to $60,000 per number. This, along with his correspondence with the firm–including requests that payments be made to his or his wife’s personal bank accounts–were cited in support of a 2014 Notice of Apparent Liability (“NAL”) finding that the CEO, in his personal capacity and on behalf of the Company, had “yet again, apparently violated the prohibition against brokering.”

As neither the Company nor the CEO timely filed a response to the 2014 NAL, the FCC affirmed the proposed fines: $16,000 for each of the 32 toll free numbers that were sold, combined with a penalty of $16,000 for each of the 178 toll free numbers that the Company and CEO offered to sell, resulting in a total fine of $3.36 million.

FCC Rejects AM Licensee’s “Not My Tower, Not My Problem” Defense

The FCC imposed a penalty of $17,000 against a Michigan radio licensee for failing to make available its issues/program lists in the station’s public file and for failing to enclose the station’s antenna structure within an effective locked fence.
Continue reading →

Published on:

By and

January 2015

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Individual fined $25,000 for Unauthorized “Chanting and Heavy Breathing” on Public Safety Station
  • Failure to Timely Request STA Results in $5,000 Fine
  • FCC Imposes $11,500 Fine for Intentional Interference and Station ID Violation

FCC Fired up by a New Yorker’s Deliberate Disregard for Public Safety

Earlier this month, the FCC imposed a $25,000 fine against a New York man for operating a radio transmitter without a license and interfering with the licensed radio communications system of the local fire department. Section 301 of the Communications Act provides that “[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with [the Act] and with a license.” Section 333 of the Act prohibits a person from willfully or maliciously interfering with any radio communications of any station licensed or authorized under the Act or operated by the United States government.

On October 31, 2013, the local fire department complained to the FCC that unauthorized transmissions of chanting and heavy breathing were interfering with its radio communications system. When the transmissions occurred during fire emergencies, the firefighters were forced to switch to an alternate frequency to communicate with each other and with the dispatchers. FCC agents traced the source of the interfering transmissions to an individual’s residence–a location for which no authorization had been issued to operate a Private Land Mobile Station. County police officers interviewed the individual and confirmed that one of his portable radios transmitted with the unique identifying code that the fire department observed when the unauthorized transmissions interfered with its communications. The officers subsequently arrested the individual for obstruction of governmental administration.

The FCC found the individual’s conduct was particularly egregious because his unlicensed operations hampered firefighting operations and demonstrated a deliberate disregard for public safety and the Commission’s authority and rules. Thus, while the FCC’s base fines are $10,000 for operation without authorization and $7,000 for interference, the FCC found that an upward adjustment of $8,000 was warranted, leading to the $25,000 fine.
Continue reading →

Published on:

By and

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Sponsorship Identification Violation Yields $115,000 Civil Penalty
  • $13,000 Increase in Fine Upheld for Deliberate and Continued Operation at Unauthorized Location
  • FCC Reduces $14,000 Fine for EAS and Power Violations Due to Inability to Pay

FCC Adopts Consent Decree Requiring Licensee to Pay $115,000 Civil Penalty

Earlier this month, the FCC’s Enforcement Bureau entered into a Consent Decree with a Nevada TV station terminating an investigation into violations of the FCC’s sponsorship identification rule.

The FCC’s sponsorship identification rule requires broadcast stations to identify the sponsor of content aired whenever any “money, service, or other valuable consideration” is paid or promised to the station for the broadcast. The FCC has explained that the rule is rooted in the idea that the broadcast audience is “entitled to know who seeks to persuade them.”

In 2009, the FCC received a complaint alleging that an advertising agency in Las Vegas offered to buy air time for commercials if broadcast stations aired news-like programming about automobile liquidation sales events at dealerships. The FCC investigated the complaint and found that the licensee’s TV station accepted payment to air “Special Reports” about the liquidation sales. The “Special Reports” resembled news reports, and featured a station employee playing the role of a television reporter questioning representatives of the dealership about their ongoing sales event.

The licensee acknowledged the applicability of the sponsorship identification rule to the “Special Reports,” but asserted that the context made clear their nature as paid advertisements despite the absence of an explicit announcement. The FCC disagreed, contending that the licensee failed to air required sponsorship announcements for twenty-seven “Special Reports” broadcast by the station from May through August of 2009.

As part of the Consent Decree, the licensee admitted to violating the FCC’s sponsorship identification rule and agreed to (i) pay a civil penalty of $115,000; (ii) develop and implement a Compliance Plan to prevent future violations; and (iii) file Compliance Reports with the FCC annually for the next three years.

FCC Finds That Corrective Actions and Staffing Problems Do Not Merit Reduction of Fine

The FCC imposed a $25,000 fine against a Colorado radio licensee for operating three studio-transmitter links (“STL”) from a location not authorized by their respective FCC licenses.

Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications signals by radio, except in accordance with the Act and with a license from the FCC. In addition, Section 1.903(a) of the FCC’s Rules requires that stations in the Wireless Radio Services be operated in accordance with the rules applicable to their particular service, and only with a valid FCC authorization.

In August 2012, an agent from the Enforcement Bureau’s Denver Office inspected the STL facilities and found they were operating from a location approximately 0.6 miles from their authorized location. The agent concluded–and the licensee did not dispute– that the STL facilities had been operating at the unauthorized location for five years. A July 2013 follow-up inspection found that the STL facilities continued to operate from the unauthorized location.
Continue reading →